Commonwealth v. Haight

525 A.2d 1199, 514 Pa. 438, 1987 Pa. LEXIS 690

Opinions

OPINION

ZAPPALA, Justice.

Footnotes

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This is an appeal from an order of the Superior Court vacating the judgment of the lower court against Appellee James Haight, and remanding the case for a new trial, 332 Pa.Super. 269, 481 A.2d 357. Appellee was convicted of burglary, criminal trespass and criminal mischief following a jury trial. Post-trial motions were denied, and Appellee was sentenced to a term of four to eight years imprisonment.

The issues presented in this case arise from portions of the Commonwealth’s cross-examination of Appellee’s girlfriend:

BY MR. SHOWALTER [FOR THE COMMONWEALTH]

Q Was Mr. Haight working on May the 4th, 1981?

A No, he didn’t work then.

Q Was he working prior to that time?

A Yes.

Q When did he last have a job?

MR. BRANN: Your Honor, this is beyond the scope of direct examination. I object to this.

THE COURT: Well, I see nothing wrong with this. Proceed.

N.T. 337.

BY MR. SHOWALTER:

Q To your knowledge, what income, if any, did Mr. Haight have on or about May 4th, 1981?

A He was on assistance.

Q How long had he been on assistance prior to that time?

A Since December, I think.

N.T. 339-40.

The Appellant urges that this evidence of income was admissible; or in the alternative, if the evidence was inadmissible, that its admission at trial was harmless error. The Superior Court, on direct appeal, held that the evidence was irrelevant, and as such was inadmissible. Further, that Court held that the admission of such evidence was not harmless error.

Evidence is relevant when “the inference sought to be raised by the evidence bears upon a matter in issue in the case and, second, whether the evidence ‘renders the desired inference more probable than it would be without the evidence[.]’” Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975) (citations omitted). Appellant argues that the evidence of income was relevant to show that Appellee had a motive for the burglary, i.e. that since Appellee was poor, he needed money. Testimony of income, however, does not tend to prove or disprove any of the facts needed to establish the crime of burglary nor those of any of the other crimes of which Appellee was convicted. We agree with the Superior Court’s finding that this testimony was inadmissible.

Appellant also urges, however, that even if the evidence was inadmissible, its admission was harmless error. When there is a “reasonable possibility” that an error may have contributed to a conviction, the error is not harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The burden of establishing that such an error was harmless rests with the Commonwealth. Id. In this case, the Superior Court held that the Commonwealth had not met that burden. For the following reasons, we agree.

Appellee’s defense was one of alibi. He claimed he was asleep in Sunbury, Pennsylvania during the time the burglary occurred. His testimony therefore directly contradicted that'of the co-conspirator and his wife who testified that he participated in the burglary. Obviously then, credibility was an important consideration to the jury in determining the guilt or innocence of Appellee. The introduction of evidence which arguably tends to ascribe the element of motive to Appellee cannot be deemed to be harmless in this instance, since it would reflect directly upon his credibility. Notably, none of the stolen items was found in Appellee’s possession, and the eyewitnesses to the crime did not identify or implicate Appellee. It is certainly a reasonable possibility, then, that the jury could have found the two co-conspirators who were in possession of the stolen items guilty and, believing the story of Appellee, find him not guilty. While this may be unlikely, it certainly cannot be said that it is unlikely beyond a reasonable doubt. The introduction of inadmissible evidence at trial tending to cast a new and not merely cumulative element against the Appellee, given the positions of the parties involved, puts an unmeasurable variable into the proceeding and the jury’s deliberation.

Our decision in Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977) supports this conclusion. In that case, a Commonwealth witness made a reference to the defend ant’s alleged drug use.¹ Immediately after the reference was made, a curative instruction was given by the tria.1 court to the jury; that court, however, refused to grant a mistrial when it was requested to do so by the defense.

Although we affirmed the refusal to grant a mistrial because a sufficient curative instruction was given to the jury, Justice Nix (now Chief Justice) rejected the “motive” argument that one addicted to drugs is in such need of money that he is more likely to commit a larcenous act. Justice Nix stated:

[T]his argument does not demonstrate an intent or reason to commit a specific act charged, but merely accentuates the propensity of the accused to commit a crime of this nature. It is this general predisposition to commit crime that this principle of law was designed to eliminate. If we were to construe the “motive exception” as suggested, we would completely abrogate the principle relating to references to prior criminal misconduct.

Id., 470 Pa. at 177, n. 3, 368 A.2d at 251, n. 3.

In the instant case, no curative instruction was given concerning the references to Appellee’s income because the trial court thought they were relevant and admissible. This strengthens the conclusion that Appellee should receive a new trial. He should be entitled to have his credibility judged free of any prejudicial taint or inference which may have some unknown effect on this outcome, especially when his testimony directly contradicts that of his co-conspirators. The grant of a new trial will ensure this, and will ensure that Appellee’s credibility is judged only upon legally admissible evidence. For this reason we affirm the Superior Court’s grant of a new trial to Appellee.

PAPADAKOS, J., filed a concurring opinion. LARSEN, J., filed a dissenting opinion. McDERMOTT, J., noted a dissent.

Reassigned to this writer.

1

. Naturally, we recognize that drug use is an illegal activity and being on welfare is not. In Williams, however, as here, the reference to drug use was being used to supply a motive for a larcenous crime, as the reference to Appellee being on welfare was being used here. Further, both could have a stigmatic effect on jurors.